Guarantee or surety, by nature, are ways of guaranteeing debts contracted by a person, whether natural or legal, with the creditor. These are personal guarantees, intended to ensure legal relationships. Understand how it works.
Therefore, the guarantor or guarantor undertakes to satisfy the obligation contracted by the debtor, in whole or in part, if the latter does not fulfill it with the creditor.
They are apparently similar institutes, provided for in the Brazilian Civil Code, but with major differences and diverse consequences, capable of causing doubts, due to unpreparedness or lack of knowledge.
GUARANTEE:
The Guarantee is a guarantee of a commercial nature, given by a third party outside the credit instrument, which can be a bill of exchange, promissory note, duplicate or check. This guarantee is linked to the obligation, that is, it is jointly and severally linked for the total debt, equating the guarantor with the debtor of the guaranteed title.
Also used in assignments of the right to use a commercial point (gloves), the guarantee must be written on the title itself, the only means capable of proving its effectiveness and can be verified by simply verifying the guarantor's signature on the credit title, expressly identifying the endorsed. The formalization of the guarantee in a separate document is prohibited.
It can be seen, then, that the Guarantee has patrimonial consequences. With this in mind, the Brazilian legislator submitted the Guarantee to the spouse's consent. Therefore, with the exception of married people under the total separation of assets regime, the Guarantee depends on the express authorization of the guarantor's spouse to be formalized.
We call this dependency “Uxória Grant”.
It can be seen, then, that the Guarantee has a commercial characteristic, allowing the creditor to directly execute the guarantor, even before the main debtor.
FROM SURETY:
Surety, in turn, is a Civil Law institute of a contractual nature and is conceptualized as a personal guarantee provided by a specific person, which guarantees the creditor payment for an obligation not paid by the main debtor.
It is clear, then, that Surety has the same purpose as Guarantee: to guarantee the obligation assumed by the debtor. However, due to the different institutes, they have differences.
Surety is a contractual obligation of an ancillary nature. Therefore, it is directly linked to the main contract, therefore, it is not presumed and only has legal effects when properly formalized. It can then be said that Surety stipulated by any other means, other than written, is not in the legal world, and does not produce legal effects.
Unlike the Guarantee, Surety may fulfill all or part of the obligation. It should be noted that, in any case, it will always assume an accessory character, and will be extinguished with the main obligation.
Another interesting feature of Surety is that it is a subsidiary guarantee, that is, in the event of non-compliance with the obligation by the debtor, it allows the guarantor to demand, firstly, that the execution of the obligation falls on the debtor's assets, so that only in case of insufficiency, will your assets be attacked.
It should be noted, however, that there cannot be an express waiver by the guarantor in the instrument establishing Surety.
In the same way as the Guarantee, the Surety will only be valid with the consent of the guarantor's spouse, except in cases of total separation of assets. However, both must sign the term establishing Surety.
It should also be noted that it is up to the creditor, when necessary, to demand the replacement of the Surety, which does not happen with the holder of the credit instrument, who is not entitled to replacement of the Guarantee;
Surety can also have an expiration date, stipulated by the guarantor, which does not happen with the guarantor. In situations like this, attention should be paid to contracts with automatic renewal. If no period is stipulated in the Surety term and the guarantor wishes to be exempt from the obligation, he must renounce it during the renewal period, or be exonerated.
It should be noted that both Guarantee and Surety can be guaranteed by a single or several guarantors of the main debtor's obligation.
WRITTEN BY: FRANCÊ Advogados (Automatic translation by Google)
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